ONTARIO COURT OF JUSTICE
DATE: 2024 12 09 COURT FILE No.: City of Brantford INFORMATION No: 0211-998-23-1545-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
Alicia BRAID
REASONS FOR DISMISSAL - APPLICATION FOR RECOGNIZANCE
Before: Justice of the Peace K.W. Bouchard
Heard on: August 2nd and October 4th, 2024 Decision delivered orally on: November 1st, 2024 Written reasons released on: December 9th, 2024
Counsel: E. Angevine, for Informant A. Braid, Defendant (Self-represented)
JUSTICE OF THE PEACE K.W. BOUCHARD:
Introduction
1Ms. Alicia Braid (the defendant) faces an application for a recognizance based on an allegation of reasonable fear of personal injury based on threatening behaviour under s.810 of the Criminal Code of Canada (the CCC). It is alleged by Brandi Nunes (the informant) that on September 22nd, 2023 in the City of Brantford (the bus stop incident) that the defendant did cause fear to a child AN (the complainant). The informant was represented by counsel, the defendant was self-represented. The crown did not intervene in the proceedings.
2The informant bore the onus, on a balance of probabilities, of showing that the complainant had a reasonable fear of personal injury. The informant did not allege any damage to property or release of intimate images. The defendant informed their intention to show cause why they should not be ordered into a recognizance.
3I presided at the two day hearing, which was heard on August 2nd, 2024 and October 4th, 2024. The peace bond hearing was adjourned, on consent, for a decision to be delivered November 1st, 2024. On that date I informed both parties that I would release written reasons for judgment within 30 days. These are those reasons.
4I find that the informant has not demonstrated, on a balance of probabilities, that an objective or reasonable fear of personal injury (psychological harm) exists; further I find that the informant did fail to show that it is necessary to order the defendant into a recognizance to mitigate that fear. Finally, I find that the defendant has shown cause, on a balance of probabilities, why they should not be ordered into a recognizance.
The Hearing
5While the existence of a basis for reasonable fear is disputed between the informant and the defendant, there are some facts that are non-contentious. Those facts include that the informant and the defendant reside near each other in the Harmony Homes townhouse complex in Brantford, that they have known each other since 2013 approximately, that they were friends at one time, but that they lost touch between 2014 and 2016, and that they relationship took a negative turn after 2021 based on a babysitter incident which is not before the court. It is also not disputed that the informant is the mother of the complainant, and that the complainant is a child as defined under s.2(1) of the Youth Criminal Justice Act (the YCJA). Further it is not disputed that there was a social media dispute in October of 2022 between the informant and the defendant involving the behaviour of the informant’s children.
6The informant, through counsel, submitted that there are multiple issues to be resolved at this hearing, including whether: the complainant had a subjective fear of personal injury by the defendant; also whether they had objective fear of personal injury. They contend that the evidence as a whole, including the testimony of the complainant and the video evidence shows both a subjective and objective fear. They further submit that the court should apply a modified objective standard to the reasonable fear standard, to wit, a modified standard of objectivity should be found to apply when a child is the victim and the court should not apply a standard of objectivity that would apply to adults. They further submit that personal injury does include psychological harm and that it is not limited to physical harm. The informant acknowledges that they do not have a reasonable basis to fear personal injury from the defendant; rather they submit the reasonable fear resides within the complainant and the s.810 information was sworn on their behalf. Finally, the informant’s counsel accepts that calls by the defendant to CAS on their own are not a basis for reasonable fear, much like phone calls to police would not form that evidentiary foundation based on sufficient due process protections.
7The defendant accepted that the complainant, who is a child, had subjective fear of personal injury, and that from the video evidence it was clear that the complainant feared the defendant during the bus stop incident; however, they submit that the viva voce evidence from the complainant showed that subjective fear had diminished by August 2nd, 2024. Further they submit that the complainant’s fear is not objectively reasonable, and they do not agree with the informant’s counsel that a modified objective standard should be applied. They submit that there is doubt as to the objective basis of the fear, that the complainant may have feared being locked out of his parent’s house on the incident date, as that was the only action visible in the video; further that the video does not show the defendant at any time, and shows no actions caused directly or indirectly by the defendant that could form a basis for reasonable fear.
The Issues
8The following issues arose from the evidence presented at the s.810 hearing, which will be dispositive of determining whether the defendant should be ordered into a recognizance:
i) Has the informant established, based on a balance of probabilities, that the complainant has a reasonable basis to fear personal injury from the defendant?
ii) Has the informant established that the complainant has suffered or could suffer psychological harm from the defendant?
iii) Is there any authority known to law to establish a modified objective standard for reasonable fear for children; whereby the court could apply a different standard to subjective and objective fear than would be applied to an adult victim?
iv) Has the defendant shown cause on any of the issues “i” through “iii”, on a balance of probabilities, why it is not necessary to order the defendant into a recognizance?
The Law
s.810 Adjudication?
9The Municipal Court of Montreal in Ricci indicated that the CCC is clear that an informant may lay an 810 information on behalf of a 3rd party; however, the court found that it may be necessary to amend the information and grant an adjournment prior to adjudication to ensure that the defendant is aware of the particulars of the 3rd party complainant. In the case at bar, the informant Brandi Nunes has laid the information on behalf of her son the complainant AN, the defendant did not request an order for particulars on the information as they were aware that it was laid on behalf of a 3rd party.
10In Musoni, the Ontario Superior Court (ONSC) reiterated that the appropriate standard of proof for the adjudication of a recognizance or peace bond is the civil standard of a balance of probabilities. Durno J. in that case reminded that a peace bond is not a finding of guilt nor a conviction, additionally it is based on a finding of reasonable fear, which indicates that the civil standard is appropriate not the criminal standard of beyond a reasonable doubt. The Ontario Court of Appeal (ONCA) affirmed the approach in Musoni that the proper procedure for a peace bond hearing is to hear at minimum an overview or summary of the circumstances to build an evidentiary foundation for the recognizance.
Reasonable Fear Defined?
11In Budreo the ONCA confirmed that the fear test incorporated into s.810 of the CCC includes not only a subjective component, to wit the informant’s or a 3rd parties fear, but also an objective component where the court must make a finding that the fear is reasonable. Laskin J.A. on behalf of the court stated:
“Fear alone connotes a state of belief or an apprehension that a future event, thought to be undesirable, may or will occur. But "on reasonable grounds" lends objectivity to the apprehension In other words, the phrase "fears on reasonable grounds" in s. 810.1(1) connotes a reasonably based sense of apprehension about a future event, or as Then J. put it, it "equates to a belief, objectively established, that the individual will commit an offence" (at p. 381).”
12In the instant case the informant must prove on a balance of probabilities not only that the complainant subjectively feared the defendant, but also prove that fear is objectively reasonable. A unique element in this analysis is the novel suggestion by counsel for the informant that a modified objective standard should be created/apply when a complainant who holds the subjective fear is a child.
Basis Modified Objective Standard for Reasonable Fear?
13I’ll now embark on a review of the law to discover if there is any legal basis to apply or create a modified objective standard for reasonable fear for a child. Informant’s counsel did not cite any authorities on this issue, I have taken the time to review the law as part of my analysis in lieu of dismissing their verbal submissions as unsubstantiated in law.
14In Hundal the Supreme Court of Canada (SCC) described the modified objective standard of mens rea for criminal offences. What is clear from this decision is: first that it applied to the mental component of a finding of criminal fault, thus the modified standard applies to the accused not the victim; second, that the SCC was concerned with the risk of blurring the line between the objective and subjective components when a jurist considers what a reasonable person ought to have known:
“The phrase "modified objective test" was introduced to ensure that jurists applying the objective test take into account all relevant circumstances in the events surrounding the alleged offence and give the accused an opportunity to raise a reasonable doubt as to what a reasonable person would have thought in the particular situation in which the accused found himself or herself. This phrase, if it is taken to suggest an amalgam of objective and subjective factors and looks at what ought to have been in the accused's mind, but goes on to consider what was actually there or not there, blurs the distinction between subjective and objective mens rea.”
15In the present case, there is a real risk of blurring the subjective and objective factors for an 810 recognizance. If I accept that there exists a lower standard of reasonable fear for child how is that lower standard to be measured? I can infer that it would be necessary to judge what is in the child’s mind thus removing the distinction between the subjective and objective components of the reasonable fear test. This court should be hesitant to remove that distinction as it reduces the objectivity of its finding.
16If the court were to create a modified objective standard, for a child’s reasonable fear, how would it be constructed? I found the analysis in Latimer instructive, where the SCC described construction of a modified objective test for the defence of necessity:
A subjective test would be met if the person believed he or she was in imminent peril with no reasonable legal alternative to committing the offence. Conversely, an objective test would not assess what the accused believed; it would consider whether in fact the person was in peril with no reasonable legal alternative. A modified objective test falls somewhere between the two. It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person. We conclude that, for two of the three requirements for the necessity defence, the test should be the modified objective test.
17Applying this methodology I could construct a modified objective standard whereby the jurist, when adjudging an 810 recognizance with a complainant who is a child, would take into account the situation and characteristics of the complainant when evaluating whether their fear was objectively reasonable. In the instant case, this would mean considering the fact that the complainant was 9 years old, that his parents weren’t home, that his home appears to have been locked when he returned home from the bus stop, and that the defendant was an adult that would have a power imbalance with the complainant. Further I would have to consider the characteristics of the complainant, to determine how they would impact a finding of personal injury, which in the present case includes a psychological harm component.
18Having found that its possible to construct such a modified objective test for reasonable fear, it is necessary to ask, should the court adopt such a construction? For the following reasons I find that it is not substantiated in law to adopt a modified objective standard for reasonable fear. First, I have found no authorities in Canada where a similar construction was applied. Second, if this court creates this construction it would weaken the objective analysis turning it into an exercise where the jurist rates situation and characteristic factors of the complainant in an adjudication of the defendant. Where a sliding scale based on the demographic characteristics of the complainant would be used to make a court order on the defendant. This would remove predictability from this summary trial procedure under the CCC; with respect to counsel for the informant but this cannot be the standard applied to this analysis as it is contrary to principles of natural and fundamental justice.
Child under YCJA Defined?
19In aid of the analysis on the objective standard it is necessary to identify the differences in law between persons who are adults, young persons, and children. Within the YCJA s.2(1) an adult is defined as: means a person who is neither a young person nor a child. It is clear from this definition that the term adult is a catch-all that incorporates all persons who are not part of either of those two categories. A young person is defined under that same section as:
(1) means a person who is or, in the absence of evidence to the contrary, appears to be twelve years old or older, but less than eighteen years old and, if the context requires, includes any person who is charged under this Act with having committed an offence while he or she was a young person or who is found guilty of an offence under this Act.
20Therefore, it is clear that a young person exists within a narrow age range of 12 or older but not more than 18. Finally, a child is defined as:
(1) means a person who is or, in the absence of evidence to the contrary, appears to be less than twelve years old.
21In this case the complainant was born in 2014, and the bus stop incident is agreed to have occurred on September 22nd, 2023. Making the complainant approximately 9 years old then and when he testified at this hearing approximately 10 years old and therefore a child.
Personal Injury & Psychological Harm Defined?
22In Mustapha, the SCC clarified that for torts, when considering whether a personal injury has occurred that it would “include[s] serious and prolonged psychological injury”. Further The SCC in McCraw, determined that serious bodily harm does include psychological harm given it includes “any hurt or injury”. The Court held that this latter language was “clearly broad enough to include psychological harm.
23Within the CCC support for this position can be found in the definition of a “serious personal injury offence” in section 752(a)(ii) which Parliament has stipulated includes “severe psychological damage”. The term also appears in section 810.2 where an informant requests a recognizance based on reasonable fear that a defendant will commit a serious personal injury offence All of these authorities would suggest that the term “personal injury” in section 810 of the Code would be interpreted as including psychological harm; I come to this conclusion based on inference that if serious personal injury includes severe psychological harm, as shown above, by extension the lesser basis of fear of personal injury includes the lesser standard of psychological harm.
Psychological Harm as Basis for Recognizance?
24The Saskatchewan Provincial Court in Hujdic similarly found that psychological harm falls within the definition of personal injury, and ordered the defendant in that case to be bound by a recognizance for 10 months to reduce the risk of further psychological harm.
25Additionally, the Alberta Provincial Court (ABPC) found within Soungie, that the court may order a defendant into a recognizance if it finds that it is likely that they will cause a complainant personal injury, which they agreed included psychological harm. Allen J. confirmed that the court must base its decision on the risk of future harm not on the risk of future offences.
26Finally, within McGough, a decision of the Ontario Court of Justice (ONCJ) it was found that, relying on the McCraw as well as Soungie, that an 810 peace bond can apply to the fear of psychological harm, although in that case the court declined to bind the defendant with an order.
The Witnesses
Brandi Nunes - the informant
27The first witness was the informant. Ms. Nunes is the mother of the complainant. She testified about the origins of her friendship with the defendant in 2013, how their relationship drifted apart in 2014/2016, and the dramatic downturn in their relationship after 2021. The informant stated that she does not fear personal injury, nor damage to property from the defendant; rather she is angered by her social media posts that questioned her parenting ability and calls to CAS that put the custody of her children at risk. She testified she is worried about the psychological harm of the CAS calls on her children, in particular her son, the complainant. She indicated she is angry with the CAS calls from the defendant and worries that she may lose her children again from the reports. The informant, under crossed confirmed that her son AN was born in 2014, and her daughter Nora in 2016.
28My assessment of the informant’s testimony is that it was largely irrelevant to the issues before the court. It did little to establish a reasonable basis for fear as I will explain later. The informant testified at length about issues she had personally with the defendant between 2016 and 2021; but only spoke briefly about the bus stop incident. It is clear that she has an acrimonious relationship with the defendant, which is mutual, it is also clear that the informant is angry at the defendant for making prior CAS calls. The most relevant portion of her testimony was her answer (on cross) that the defendant was not in the video filmed on the front porch of the informant’s property the same day as the bus stop incident. I did not find her testimony particularly credible as a basis for reasonable fear, and that her observations of the complainant’s fear were tainted by her bias against the defendant.
AN - The complainant
29In contrast to the informant, the testimony of the second witness, the complainant was more relevant to the issues before the court. Young Mr. Nunes, a witness under 14, after making a promise to tell the truth under s.16.1 of the Canada Evidence Act (the CEA), testified about the bus stop incident and in general about his fear of the defendant. He stated that he was walking to the bus stop, he observed the defendant with her friend, the witness. He stated that the defendant and her friend pointed at him and were talking. He stated that he felt the defendant walked towards him, so he ran home; but his mom, the informant, was not home, and the house was locked. The video exhibit then showed the complainant scared, at the front door crying and looking over his shoulder. It was clear from the video that subjectively he was gripped with fear at that moment; however, the defendant is never seen in the video, nor the witness, only the complainant at the front porch looking scared and trying to get into the house. Importantly the complainant confirmed that the defendant did not follow him to his house; rather he believed he saw her return to her house then go out and walk her dog. The incident ended that day by the complainant returning the bus stop a short time later when there were other kids present.
30I found this young witness to be credible, I did not note any major inconsistencies in his testimony about the bus stop incident. I also found that his description of the events to be reliable, as they aligned both with the video and with the testimony of the witness.
Samantha French - The witness
31The final witness, and first defence witness was Samantha French (the witness). She is a friend of the defendant and confirmed that they were both present at the bus stop incident. She also confirmed that the complainant approached the bus stop from the hill that morning, and that she saw him turn and run away. She indicated that the defendant departed for her home, and then the witness departed the bus stop and called children’s aid to report that the complainant had been left home alone by the informant.
32I found that the witness’s recollection of the events during the bus stop incident were reliable. It aligned in most respects with the testimony of the complainant, with the exception that she did not indicate that they were pointing at the child, but she did comment to the defendant on the odd behaviour of the complainant. She added the new information that it was the witness and not the defendant who reported the incident to CAS on that date. The witness confirmed the acrimonious relationship between the informant and the defendant and confirmed that she does not like the informant and that she has had some negative incidents with her. While I found this witness to be credible on her recollection of events, I observed that she was unnecessarily combative and argumentative when questioned under cross examination which diminished her credibility on those answers The witness confirmed that the defendant is a CAS worker, and that she is worried that the informant filed the peace bond complaint to ruin the livelihood of her friend the defendant. I don’t give these responses any weight as they were speculative, not relevant to disposition of the issues, and reflective of the argumentative tone of her responses I previously indicated.
The Analysis & Findings
Risk of Psych Harm/ Personal Injury?
33Both parties accept that the complainant is a child, and that subjectively he did demonstrate real and palpable fear during the bus stop incident. Accordingly, I find that the complainant had subjective fear of personal injury on that date. The question then remains what type of personal injury? Did he fear that he would be physically assaulted by the defendant? No, there is no evidence from any of the witnesses, nor from the complainant himself that he feared that the defendant would physically attack him in some way on the date of the incident when they both left the bus stop. What type of harm then did he fear subjectively? Based on the evidence of his mother, the informant, she testified that the complainant did not have fear of physical injury; rather she had discussed the prior CAS calls (by the defendant) with her son, and that had caused him to have nightmares and behavioural issues at school. I infer from this that the informant subjectively believes that the complainant has suffered psychological harm by the actions of the defendant.
34My review of the authorities within Ontario found no binding authority that psychological harm is a component of personal injury; however, I am persuaded by McGough and the preponderance of authorities from Saskatchewan, B.C., Alberta, and Yukon that cite Hujdic and Soungie that personal injury does include mental health impacts or psychological harm. I will next evaluate the evidence to determine whether these subjective personal injuries (psychological harms) are objectively reasonable.
Basis for Modified Objective Standard?
35The defence advanced a novel interpretation of the reasonable fear standard under s.810 of the CCC. Binding authorities have established that there are two branches that must be examined to make a finding of reasonable fear: a subjective branch, and an objective branch. The defence posits that the subjective branch applies equally to victims with no age-specific modification; rather they posit that the objective branch should be modified to account for the different manner that environmental stimuli are processed by children. As I will summarize in my conclusions, this argument must fail. There is no basis in law to create a modified objective standard for reasonable fear, one where the standard would be a sliding scale based on age-specific demographic factors. I will apply the established objective test for reasonable fear to the case at bar.
Established Reasonable Fear?
36I turn next to the objective test, and whether the informant has shown on a balance of probabilities that the complainant reasonably fears personal injury (psychological harm) from the defendant. With respect to the child’s youth and subjective fear there is no reasonable basis to conclude that their fear is objectively reasonable. From the evidence at the hearing there appears to be two possible threads to assess reasonableness: first, whether repeated reports to CAS by the defendant and her friend (the witness) can form an objective basis, second, whether the actions by the defendant and the witness, during the bus stop incident, can form an objective basis.
37The first thread fails based on the submissions of the informant’s counsel. They accept as a matter of law that reports to CAS do not form a reasonable basis for objective fear; similar to police reports by citizens there are enough due process protections built into CAS reports to prevent an abuse of process and thus a basis for reasonable fear.
38The second thread fails based on the evidence at the hearing. If I accept the evidence from its most inculpatory perspective, it still does not demonstrate an objective basis for reasonable fear. The defendant and witness pointing at the complainant at a bus stop, and then returning to their own respective properties without incident, with the defendant then walking her dog is far from proving on a balance of probabilities that the defendant created reasonable fear of psychological harm during or after the bus stop incident.
39Instead, I make the following inferences. Based on the evidence as a whole the inferences that best explain the facts in this case are that the informant, as the mother of the complainant, created an aura of fear within the complainant surrounding any interactions with the defendant. Based on the acrimonious relationship between the informant and defendant, and the self-described anger she harbours against the defendant she inculcated a subjective fear of the defendant in the complainant. That fear is not objectively reasonable, and leads to the necessary finding that the informant has not shown cause on a balance of probabilities why the defendant should be ordered into a recognizance.
Did Defendant Show Cause?
40The defendant did not have the burden of proof at this hearing, but they are provided the opportunity to show cause on a balance of probabilities why the subjective fear observed in the complainant is not objectively reasonable, and why it is not necessary to order the defendant into a recognizance. I find that the defendant has shown cause on both threads, and for those reasons the information must be dismissed.
Conclusions
41For these reasons the informant has failed to show on a balance of probabilities that the complainant had a reasonable fear of personal injury, specifically psychological harm, from the defendant. While the complainant was subjectively fearful of psychological harm, their fear was not objectively reasonable.
42Within the ratio of this decision I found no basis or authority in law to create a modified objective standard for reasonable fear for a child or any other age group as I have explained; rather I found the subjective branch of the reasonable fear test already incorporates the diminished ability of children to adjust their emotional affect to environmental stimuli. I accept that children, as well as elderly persons, may have a lower threshold for subjective fear based on their vulnerability; however, the same objective standard of “reasonableness” must apply to all potential complainants that are children, young persons, adults, and the elderly; I see no reason to create an age specific objective standard. The defence approach must fail as it would turn the fact specific analysis on reasonable fear into an exercise where the objective standard devolves into a sliding scale based on the demographic characteristics of the complainant. It would diminish the purpose of the objective analysis, and instead intrude the subjective into the objective analysis. At worse it could risk lowering the established burden of proof from a balance of probabilities to a lower standard such as reasonable grounds to believe. I do not accept that a lower standard of proof should apply to the reasonable fear standard when the complainant is a child; rather, the established authorities have established the appropriate burden as being on a balance of probabilities, and that is the test that this court applied in its analysis.
43As an aside, I note that as an inferior court we are not often given the opportunity to establish or construct a new standard, except as here in what may be a novel area of law. Instead that responsibility rests most often within the domain of appellate courts who can review a range of cases and apply broad guidance on such a standard. I decline to create a new modified objective standard from whole cloth for the case at bar. If I am wrong I am confident that appellate review can decide the issue of the appropriate standard when the complainant is a child.
44I have accepted the defendant’s submissions that there is no basis for reasonable fear, it is therefore not necessary to order the defendant into a recognizance to prevent the continuation of that fear. The information is dismissed. I will next hear submissions from both parties on an order of dismissal, and any other ancillary orders requested by each party.
Signed: Justice of the Peace K.W. Bouchard